Wadkins et al v. Werner et al

Filing 35

MEMORANDUM OPINION re 34 Order on Motion to Dismiss/Lack of Jurisdiction. Signed by Senior Judge Glen H. Davidson on 6/17/15. (rel)

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

JONATHAN FRANKLIN WADKINS,
SANDRA KAY WADKINS, and
FRANKLIN MARTIN WADKINS

PLAINTIFFS
CIVIL ACTION NO. 1:14-cv-00209-GHD-DAS

v.

KEISHA ELIZABETH WERNER and
JOHN ALLEN WERNER, III

DEFENDANTS

MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART

DEFENDANTS' CORRECTED MOTION TO DISMISS OR, IN THE ALTERNATIVE,

FOR JUDGMENT ON THE PLEADINGS

Presently before the Court is a motion to dismiss or, in the alternative, for judgment on the
pleadings [17] filed by Defendants Keisha Elizabeth Werner and John Allen Werner, III
("Defendants").

Plaintiffs Jonathan Franklin Wadkins, Sandra Kay Wadkins, and Franklin

Martin Wadkins ("Plaintiffs") have filed a response, and Defendants have filed a reply. On June
11,2015, the Court held a hearing on the motion to give the parties an opportunity to present oral
6lfgument on the motion. Upon due consideration, the Court finds that the motion should be
~..

granted in part and denied in part as set forth below.

A. Legal Standards
Defendants characterize their motion as a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure or a motion for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. A Rule 12(c) motion is governed by the same
standards as a Rule 12(b)(6) motion-that is, the Court must determine upon a review of the
pleadings whether the plaintiff has stated a valid claim for relief. See Brown v. CitiMortgage,

1

Inc., 472 F. App'x 302, 303 (5th Cir. 2012) (per curiam) (citing St. Paul Mercury Ins. Co. v.
Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000».
"After the pleadings are closed-but early enough not to delay trial-a party may move for
judgment on the pleadings." Fed. R. Civ. P. 12(c). A motion brought pursuant to [Rule] 12(c) is
designed to dispose of cases where the material facts are not in dispute and a judgment on the
merits can be rendered by looking to the substance of the pleadings and any judicially noticed
facts." Hebert Abstract Co. v. Touchstone Props., Ltd., 914 F.2d 74, 76 (5th Cir. 1990) (per
curiam) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1367,
at 509-10 (1990». So, too, when deciding a Rule 12(b)(6) motion to dismiss, the Court is limited
to the allegations set forth in the complaint and any documents attached to the complaint. See

Walker v. Webco Indus., Inc., 562 F. App'x 215, 216-17 (5th Cir. 2014) (per curiam) (citing
Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004».
"[A plaintiffs] complaint. .. 'must contain sufficient factual matter, accepted as true, to
"state a claim to relief that is plausible on its face." ,,, Phillips v. City ofDallas, Tex., 781 F3d
772, 775-76 (5th Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678,129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009)(quotingBell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007»). A claim is facially plausible when the pleaded factual content "allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
"[P]laintiffs must allege facts that support the elements of the cause of action in order to make out
a valid claim." Webb v. Morella, 522 F. App'x 238, 241 (5th Cir. 2013) (per curiam) (quoting

City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (5th Cir. 2010) (internal
2

quotation marks omitted».

"[C]onclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to prevent a motion to dismiss." Id. (quoting FernandezMontes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir.l993) (internal quotation marks

omitted». "Dismissal is appropriate when the plaintiff has not alleged 'enough facts to state a
claim to relief that is plausible on its face' and has failed to 'raise a right to relief above the
speculative leveL'" Emesowum v. Hous. Police Dep't, 561 F. App'x 372, 372 (5th Cir. 2014)
(per curiam) (quoting Twombly, 550 U.S. at 555,570, 127 S. Ct. 1955).
The Fifth Circuit has explained the Iqbal/Twombly standard as follows:
In order for a claim to be plausible at the pleading stage, the
complaint need not strike the reviewing court as probably
meritorious, but it must raise more than a sheer possibility that the
defendant has violated the law as alleged. ... In determining
whether a complaint states a claim that is plausible on its face, the
court draws on its judicial experience and common sense.
Oceanic Exploration Co. v. Phillips Petroleum Co. ZOC, 352 F. App'x 945, 950 (5th Cir. 2009)

(per curiam) (internal quotation marks and citations omitted).
Although the Court need not "accept as true conclusory allegations or unwarranted
deductions of fayt," see Great Plains Trust Co., 313 F.3d at 313, dismissal is appropriate only
"when it is clear that the plaintiff can prove no set of facts in support ofhis claim that would entitle
him to relief," id. at 302-03. "The issue is not whether the plaintiffs will ultimately prevail, but
whether they are entitled to offer evidence to support their claims. " Ferrer v. Chevron Corp., 484
F.3d 776, 780 (5th Cir. 2007).

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B. Discussion and Analysis

Plaintiffs allege that Defendants violated several sections of the Federal Wiretap Act, 18
U.S.C. § 2510 et seq. 1 Plaintiffs also assert state-law claims for intentional infliction ofemotional
distress and invasion of privacy.

Plaintiffs bring their claims under the auspices of federal

question jurisdiction under 28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. §
1367(a).
With respect to the Federal Wiretap Act claims, first, Plaintiffs allege that Defendants
violated 18 U.S.C. § 2511(1)(a) and (b) when they allegedly intercepted the private oral
communications of Plaintiffs using a device that they had purchased in the District of Columbia
and subsequently transported back to Mississippi in interstate commerce.

Second, Plaintiffs

allege that Defendants violated 18 U.S.c. § 2511(1)(c) when they disclosed the contents of the
subject recordings to their attorney in the state-court proceeding. Finally, Plaintiffs allege that
when Defendants' attorney in the state-court proceeding disclosed the contents of the subject
recordings to Plaintiffs' attorney in discovery in the ongoing state-court child custody case,
Defendants were endeavoring to use the contents of the intercepted oral communication and were
in violation of 18 U.S.c. § 2511 (1)( d).
Defendants make several arguments in support of dismissal, including that Plaintiffs'
complaint fails to state a claim upon which relief can be granted and seeks to improperly involve
the federal court in a child custody proceeding that does not fall within the purview of the Federal

1 The statute, commonly referred to in the Fifth Circuit as the Federal Wiretap Act or the Wiretap Act, is
"formally known as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the
Electronic Communications Privacy Act of 1986 and the Communications Assistance for Law Enforcement Act of
1994." See United States v. Moore, 452 F.3d 382, 386 n.2 (5th Cir. 2006). "The basic purpose ofthe statute ... is to
'protec[t] the privacy ofwire[, electronic,] and oral communications.'" Bartnicki v. Vopper, 532 U.s. 514,526, 121
S. Ct. 1753,149 L. Ed. 2d 787 (2001) (quoting S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968), U.S. Code Congo &
Admin. News 1968, pp. 2112, 2153).

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Wiretap Act. Defendants further argue that the recordings of communications, which are the
subject of this litigation, occurred solely in the State of Mississippi, and Defendants' act of
purchasing the recording device outside of the State of Mississippi does not establish the federal
nexus requirement of claims brought under the Federal Wiretap Act-though Defendants
acknowledge they could locate no Fifth Circuit case law stating this federal nexus requirement.
Defendants further argue that the Court should decline to exercise jurisdiction over all claims
asserted by Plaintiffs.
The Fifth Circuit has characterized 18 U.S.C. § 2511 as "primarily a criminal provision,"
stating in pertinent part that "anyone who intentionally intercepts any electronic communication,
as described in subsections (l)(a) through (e), is subject to criminal penalties as provided in
subsection (5)." DlRECTV, Inc. v. Bennett, 470 F.3d 565, 566-67 (5th Cir. 2006) (citing 18
U.S.C. § 2511(1)). However, the Fifth Circuit has recognized that "Section 2520(a) expressly
allows private civil suits by any person whose electronic communication is intercepted in violation
of 'this chapter' of the statute." ld. at 567. The Fifth Circuit has explained:
Section 2520 allows "any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used in
violation of this chapter" to recover appropriate relief from the
person or entity which engaged in the violation in a civil action. 18
U.S.C. § 2520(a). This section establishes that the violations for
which civil actions are allowed are those described in this "chapter."
Chapter 119, Wire and Electronic Communications Inceptions and
Interception of Oral Communications, includes [S]ection 2511
which prohibits the intentional interception of any wire, oral, or
electronic communication. 18 U.S.C. § 2511(l)(a).

ld. at 568.
This case is of a type sometimes brought under the Federal Wiretap Act: the alleged
violations of 18 U.S.C. § 2511 (1) were motivated by a domestic dispute wherein the identity ofthe
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persons allegedly intercepting the communication was known. See Bartnicki v. Vopper, 532 U.S.
514,530, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001). Indeed, "[t]he legislative history of the 1968
Act indicates that Congress' concern focused on private surveillance 'in domestic relations and
industrial espionage situations.''' !d. at 530 n.16 (quoting S. Rep. No. 1097, 90th Cong., 2d
Sess., 225 (1968), U.S. Code Congo & Admin. News 1968, pp. 2112,2274).
Most federal and state courts have held that interspousal wiretapping falls within the
purview of the Federal Wiretap Statute. The Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits
have held that such wiretapping is actionable under the Federal Wiretap Act. See Glazner v.

Glazner, 347 F.3d 1212 (l1th Cir. 2003); Heggy

V.

Heggy, 944 F.2d 1537, 1539 (10th Cir. 1991);

Kempfv. Kempf, 868 F.2d 970, 972-73 (8th Cir. 1989); Pritchardv. Pritchard, 732 F.2d 372,374
(4th Cir. 1984); United States v. Jones, 542 F.2d 661,667 (6th Cir. 1976). Accord Gill V. Willer,
482 F. Supp. 776, 778 (w.n. N.Y. 1980); Kratz

V.

Kratz, 477 F. Supp. 463, 473-75 (E.n. Pa.

1979); Remington V. Remington, 393 F. Supp. 898,901 (E.n. Pa. 1975);

w.

Va. Dep 't ofHealth &

Human Res. ex reI. Wright v. David L., 453 S.E.2d 646, 652 (W. Va. 1994); People v. Otto, 831
P.2d 1178, 1185 (Cal. 1992); Ex parte a 'Daniel, 515 So. 2d 1250, 1253 (Ala. 1987); Pulawski v.

Blais, 506 A.2d 76, 77 n.2 (R.I. 1986); Rickenbaker v. Rickenbaker, 226 S.E.2d 347, 352 (N.C.
1976).
Both the Second and Fifth Circuits have held that interspousal wiretaps may fall within the
purview of the Federal Wiretap Act, but not in all factual scenarios.

See Anonymous v.

Anonymous, 558 F.2d 677, 679 (2d Cir. 1977); Simpson v. Simpson, 490 F.2d 803,810 (5th Cir.),
cert. denied, 419 U.S. 897,95 S. Ct. 176,42 L. Ed. 2d 141 (1974). Accord Stewart v. Stewart, 645
So. 2d 1319, 1321 (Miss. 1994); Baumrind v. Ewing, 279 S.E.2d 359, 360 (S.C. 1981).

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In Anonymous v. Anonymous, the Second Circuit stated:
Congress was not unaware of the growing incidence of interspousal
wiretaps, and did not intend to blanketly except them from the Act's
coverage. The issue becomes at what point interspousal wiretaps
leave the province of mere marital disputes, a matter left to the
states, and rise to the level of criminal conduct proscribed by the
federal wiretap statutes.
558 F.2d at 677. In that case, an ex-wife brought a civil damages action under Section 2520
against her ex-husband for allegedly violating the Federal Wiretap Act by recording the ex-wife's
telephone conversations with their eight-year-old daughter, who was residing with and in the
exclusive custody of her father at the time of the recordings. [d. at 677-78. The Second Circuit
held that-even though the case was brought as a civil action-the facts alleged did not rise to the
level of criminal conduct intended to be covered by the Federal Wiretap Act. [d. at 677. In that
case, the ex-husband had purchased at a local retail store a telephone answering machine, which he
plugged into the telephone jack in his apartment; the ex-husband then allegedly instructed their son
to hit the "record" button on the answering machine whenever the ex-wife called so that he could
record the ex-wife's conversations with their daughter. [d. at 678. The ex-wife claimed that her
ex-husband intended to use these tapes against her in a later custody fight for their daughter. [d.
The Second Circuit expressed concern with criminalizing conduct involving a father listening in
on conversations between his wife and his eight-year-old daughter from his home phone,
recognized such conduct as a domestic conflict between fonner spouses, and reasoned that "[t]he
fact that appellee here taped the conversations which he pennissibly overheard . . . [was] a
distinction without a difference." [d. at 679. The Second Circuit explained: "We do not condone
the husband's activity in this case, nor do we suggest that a plaintiff could never recover damages

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from his or her spouse under the federal wiretap statute. We merely hold that the facts ofthis case
do not rise to the level of a violation of that statute." Id.
In Simpson, the Fifth Circuit was confronted with the following issue in the context of a
suit by the wife for civil damages against her husband pursuant to Section 2520: "Is the
interception by a husband using electronic equipment ofthe conversations of his wife with a third
party over the telephone in the marital home included in the [scope of the Federal Wiretap Act]?"
490 F.2d at 804. The Fifth Circuit answered the question "no," but acknowledged that "the
language and legislative history of the Act leaves the question in considerable doubt." Id. In
examining the Federal Wiretap Act, the Fifth Circuit acknowledged that "[t]he naked language of
[the Federal Wiretap Act] by virtue of its inclusiveness, reaches this case," but "we are of the
opinion that Congress did not intend such a farreaching result, one extending in to the areas
normally left to states, those of the marital home and domestic conflicts." !d. at 805. The Fifth
Circuit also expressed reluctance to extend the reach of the Federal Wiretap Act without
"indications of congressional intent and awareness," "given the severity of the remedy seemingly
provided by [the Federal Wiretap Act]." Id. at 805-06.
In a subsequent decision concerning the Federal Wiretap Act, the Fifth Circuit

acknowledged its Simpson decision was an example of the Fifth Circuit's "past experiences ...
that construction of the Wiretap Act is fraught with trip wires." Forsyth v. Barr, 19 F.3d 1527,
1542-1543 (5th Cir. 1994). Although the Simpson holding has been hotly criticized by many
courts, it remains binding law in the Fifth Circuit. "It is a firm rule of this circuit that in the
absence of an intervening contrary or superseding decision by [the Fifth Circuit] sitting en bane or
by the United States Supreme Court," even another panel of the circuit cannot overrule a prior

8

panel's decision. Burge v. Parish

0/ St.

Tammany, 187 F.3d 452, 466 (5th Cir. 1999); United

States v. Setser, 607 F.3d 128, 131-32 (5th Cir. 2010). Because Simpson is the law of the Fifth

Circuit, this Court must follow it.

Furthennore, the reasoning underlying the Simpson

decision-that the particular facts of the case presented a domestic dispute not suited for federal
court jurisdiction-is based on longstanding principles of federal jurisprudence.
The United States Supreme Court's statements with respect to original civil actions for
divorce, alimony, and child custody brought in federal court under the auspices of diversity
jurisdiction are instructive: H[S]tate courts are more eminently suited to work of this type than are
federal courts, which lack the close association with state and local government organizations
dedicated to handling [the] issues [involved]." Ankenbrandt v. Richards, 504 U.S. 689, 703-04
112 S. Ct. 2206, 119 LEd. 2d 468 (1992). However, the Supreme Court clarified that "claims of
a kind traditionally adjudicated in federal courts, for example, tort or contract claims, are not
excepted from federal-court jurisdiction simply because they arise in a domestic relations
context." City o/Chicago v. Int'/ Col/. o/Surgeons, 522 U.S. 156,190 n.6, 118 S. Ct. 523, 139 L
Ed. 2d 525 (1997) (citing Ankenbrandt, 504 U.S. at 704, 112 S. Ct. 2206).
Similarly, the Fifth Circuit has given the following "reasons for the federal judiciary's
traditional refusal to exercise diversity jurisdiction in domestic relations cases: 'the strong state
interest in domestic relations matters, the competence ofstate courts in settling family disputes, the
possibility of incompatible federal and state court decrees in cases of continuing judicial
supervision by the state, and the problem of congested dockets in federal courts.''' Jagiel/a v.
Jagiella, 647 F.2d 561,564 (5th Cir. 1981) (quoting Crouch v. Crouch, 566 F.2d 486,487 (5th Cir.

9

1978)). In that case, the Fifth Circuit quoted language from a district court opinion, Bacon v.
Bacon, 365 F. Supp. 1019 (D. Ore. 1973):

"The language of the complaint shows this to be part of an ongoing
series of disputes centering around the dissolved but still stormy
relationship and the status of and harm to their children.
"(I)fthis case were allowed to be maintained, United States District
Courts would be deluged with domestic relations cases, all
containing initially colorable tort claims of 'extreme and outrageous
conduct resulting in severe emotional distress' where the parties
have placed (a state border) between themselves in an attempt to
escape each other.
"For this and other policy reasons, a judicial exception to federal
jurisdiction has been created with respect to intra-family feuds."
Id. at 1020.

No court in the Fifth Circuit has examined a factual scenario like the one in the case sub
judice-a civil action under the Federal Wiretap Act involving a couple who was never married,

but whose relationship produced a child, and which involves allegations that certain persons,
including the mother of the child, placed a recording device in the child's diaper bag for the
purpose of recording conversations ofthe father of the child, as well as his parents. However, the
following cases present somewhat similar facts and are instructive for this Court on the issue.
In Gerke v. Bagley, No. H-I0-2319, 2010 WL 4102893 (S.D. Tex. Oct. 18,2010), the
plaintiffs alleged that one of the plaintiffs and one of the defendants were married but in the
process of divorcing when the defendant placed a voice-activated recording device in the
plaintiffs' home without their knowledge or consent. Id. at *1. The plaintiffs alleged that the
defendant's conduct constituted violations of the Federal Wiretap Act, the Texas state wiretap
statute, and their state right to privacy; the plaintiffs further alleged that the conduct intentionally
10

inflicted emotional distress. Id. The United States District Court for the Southern District of
Texas drew a distinction between the claims brought by the former spouse of the defendant,
finding that those claims concerned interspousal wiretapping that constituted a domestic dispute
and were properly dismissed as not falling within the purview ofthe statute. However, the court
sustained the claims brought by the other plaintiffs who were "never married to [the defendant]."

Id. at *4.

The court also sustained the remaining state-law claims, as the same were not

challenged by the defendants. Id.
Similarly, in Kirkland v. Franco, 92 F. Supp. 2d 578 (E.D. La. Apr. 17,2000), the United
States District Court for the Eastern District of Louisiana was confronted with a factual scenario
wherein a husband purchased a telephone recording device from an electronics store and placed it
. on an extension telephone in the couple's bedroom without his wife's knowledge in order to record
conversations between the wife and a person with whom she was allegedly having an extramarital
affair; the couple subsequently divorced, and the ex-wife brought the action against her
ex-husband claiming violations of the Federal Wiretap Act and the Louisiana state wiretapping
statute. Id. at 578-79. The court dismissed the claims by the ex-wife against her ex-husband as
falling outside the purview of the Federal Wiretap Act, but sustained the claims brought by the
other plaintiff, reasoning that "the decision does not apply to [the other ,plaintiff] because she was
never his spouse." Id. at 580.
Additionally, in Gaubert v. Gaubert, No. Civ.A. 97-1673, 1999 WL 10384 (E.D. La. Jan.
7, 1999), an ex-wife brought a civil action against her ex-husband, alleging that his connection of a
recording device to the telephone at their home that recorded telephone conversations between her
and third parties was a violation ofthe Federal Wiretap Act. ld. at * 1. The United States District

11

Court for the Eastern District of Louisiana drew a distinction between the facts ofthat case and the
facts in Simpson, reasoning that the facts that the spouses were separated and thus not living in the
same home and had filed for divorce took the case out of any domestic relations realm that would
except it from the reach ofthe Federal Wiretap Act. Id. 2
The following are undisputed facts in the case sub judice. Although they were never
married, Plaintiff Jonathan Franklin Wadkins and Defendant Keisha Elizabeth Werner were in a
romantic relationship that produced a child born January 28,2012; subsequently, the two ended
their relationship and eventually married other people. Pis.' CompL [1] ~ 9-10; Defs.' Corrected
Answer & Defenses [19]

~

9-10. The father of the child, Plaintiff Jonathan Franklin Wadkins,

filed a complaint to establish paternity and custody of the child on September 18, 2012 in the
Chancery Court of Alcorn County, Mississippi; the matter has been hotly contested since; and on
November 26,2012, Chancellor Jacqueline Mask entered a Temporary Order granting the parties
temporary joint legal and physical custody of the minor child. PIs.' CompL [1] ~ 11-12; Defs.'
Corrected Answer & Defenses [19]

~

11-12; Temporary Order [1] at 15-16. All Plaintiffs,

including the father of the child and his own parents, and Defendants, including the mother of the
child and her spouse, are normally present for the exchange of the child and the child's diaper bag
containing various items. PIs.' CompL [1]

~

13; Defs.' Corrected Answer & Defenses [19]

~

13.

2 In a somewhat factually similar case, Norman v. Norman, No. Civ. A. 95-2395,1996 WL 75584 (E.D. La.
Feb. 15, 1996), a woman discovered her home telephone conversations were being wiretapped while divorce
proceedings were pending between her and her husband. Id. at "'I. Both parties signed an agreement during the
divorce proceedings wherein they agreed not to disclose the contents of the telephone conversation recordings nor
institute any civil proceedings against each other arising from the taping ofthe telephone conversations. Id. at "'1-*2.
Despite this agreement, the ex-wife filed a civil action pursuant to the Federal Wiretap Act against her ex-husband
alleging, inter alia, that the recordings violated the Federal Wiretap Act. /d. at *2. The United States District Court
for the Eastern District of Louisiana declined to reach the interspousal wiretapping issue, froding that dismissal was
appropriate because the ex-wife had entered into a valid compromise under Louisiana law which barred the suit. Id.
at *5. Thus, Norman is not instructive on the issue at hand.

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In late 2013, Defendants traveled to Washington D.C., purchased a recording device, and brought
it back to the State of Mississippi. Pis.' Compi. ~ 15; Defs.' Corrected Answer & Defenses [19] ~
14.

Subsequently, Defendant Keisha Elizabeth Werner turned on the recording device;

Defendant John Allen Werner, III verbally stated the date; Defendant Keisha Elizabeth Werner
placed the recording device into the child's diaper bag; and Defendant John Allen Werner, III gave
the diaper bag to Plaintiff Franklin Martin Wadkins, who placed the diaper bag containing the
recording device into his automobile in the presence of the minor child. Pis.' Compi. [1]
Defs.' Corrected Answer & Defenses [19]

~

~

16;

16. The following week, when the child was

returned to Defendants, the diaper bag was also transferred to Defendants, who listened to the
recorded communications. Pis.' Compi. [1] ~ 18; Defs.' Corrected Answer & Defenses [19] ~ 18.
At a subsequent exchange of the child and diaper bag, Defendants placed the recording device in
the diaper bag, and Defendant John Allen Werner, III transferred the diaper bag to Plaintiff
Franklin Martin Wadkins, who placed it in his automobile.

PIs.' Compi. [1]

~

19; Defs.'

Corrected Answer & Defenses [19] ~ 19. When the child was returned to Defendants, Defendants
listened to the newly recorded communications. Pis.' Compi. [1] ~ 19; Defs.' Corrected Answer
& Defenses [19]

~

19. Defendants subsequently gave the recording device and tapes to their

attorney, who sent a copy to Plaintiffs' attorney during discovery in the ongoing child custody
litigation. Pis.' CompI. [1] ~ 21 ; Defs.' Corrected Answer & Defenses [19] ~ 22. As stated, the
child custody proceedings between the mother and father of the child are ongoing and hotly
contested, and thus were ongoing and hotly contested when the undisputed facts giving rise to this
case occurred.

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In this Court's view, Plaintiff Jonathan Franklin Wadkins, the father of the child, and
Defendant Keisha Elizabeth Werner, the mother of the child, both of whom have an ongoing
state-court custody battle, are not appropriate parties to this case. The undisputed facts forming
the claims between these two parties are part and parcel of the underlying state-court child custody
proceedings, do not fall within the purview of the Federal Wiretap Act, and fail to state a claim.
The Court further finds that it would be improper to exercise federal jurisdiction over these claims,
which may involve federal law but are still creatures ofstate law, particularly that concerning child
custody law. Accordingly, such claims are dismissed.
As to the claims for intentional infliction of emotional distress and invasion of privacy
between Plaintiff Jonathan Franklin Wadkins and Defendant Keisha Elizabeth Werner, this Court
finds that due to considerations of comity and the expertise of the state courts in dealing with such
domestic disputes, the exercise of supplemental jurisdiction over the remaining state-law claims
would be inappropriate. See 28 U.S.C. § 1367(c); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
357, 108 S. Ct. 614,98 L. Ed. 2d 720 (1988). Accordingly, the state-law claims between Plaintiff
Jonathan Franklin Wadkins and Defendant Keisha Elizabeth Werner shall be dismissed without
prejudice.

Plaintiff Jonathan Franklin Wadkins may attempt to file these claims against

Defendant Keisha Elizabeth Werner in state court.
However, the Federal Wiretap Act claims brought by Plaintiffs Sandra Kay Wadkins and
Franklin Martin Wadkins against Defendants Keisha Elizabeth Werner and John Allen Werner, III
shall proceed. In addition, the Federal Wiretap Act claims brought by Plaintiff Jonathan Franklin
Wadkins against Defendant John Allen Werner, III (the mother's spouse) shall proceed.
Plaintiffs Sandra Kay Wadkins and Franklin Martin Wadkins have adequately stated a claim

14

pursuant to Rule 12(b)(6) that their oral communications were intercepted by Defendants Keisha
Elizabeth Werner and John Allen Werner, III in violation of the Federal Wiretap Act. See 18
U.S.C. § 2520(a).

And Plaintiff Jonathan Franklin Wadkins has adequately stated a claim

pursuant to Rule 12(b)(6) that his oral communications were intercepted by Defendant John Allen
Werner, III in violation ofthe Federal Wiretap Act.
Defendants have not specified a legal basis for dismissing the remaining state-law claims
for invasion ofprivacy and intentional infliction of emotional distress, and the same shall proceed
as brought by Plaintiffs Sandra Kay Wadkins and Franklin Martin Wadkins against Defendants
Keisha Elizabeth Werner and John Allen Werner, III and as brought by Plaintiff Jonathan Franklin
Wadkins against Defendant John Allen Werner, III.
The Court notes that the present motion before the Court is a motion to dismiss under Rule
12(b)(6) or Rule 12(c), and as such, pertains to pleadings only. The Court can address challenges
to these claims on a motion for summary judgment after discovery and the development of a
record.

C Conclusion
In sum, Defendants' motion to dismiss or, in the alternative, for judgment on the
pleadings [17] is GRANTED IN PART AND DENIED IN PART, as follows:
(1) All federal claims brought by Plaintiff Jonathan Franklin Wadkins against Defendant

Keisha Elizabeth Werner are DISMISSED;
(2) All state law claims brought by Plaintiff Jonathan Franklin Wadkins against Defendant
Keisha Elizabeth Werner are DISMISSED;
(3) All federal and state law claims brought by Plaintiff Jonathan Franklin Wadkins

15

(4) All federal and state law claims brought by Plaintiffs Sandra Kay Wadkins and
Franklin Martin Wadkins against Defendants Keisha Elizabeth Werner and John Allen
Werner, III shall PROCEED.
A separate order in accordance with this opinion shall issue this day.
THIS,

~~Of June, 2015.

r

SE

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